Enviroclean Systems, Inc., B-278261, December 24, 1997

B-278261 Dec 24, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest challenging use of negotiated procedures rather than sealed bidding to acquire waste management services is denied where the record shows that the agency reasonably concluded that discussions might be required before award. Enviroclean argues that the Army is required to use sealed bidding procedures for this procurement. [1] We deny the protest. Enviroclean is the current incumbent contractor providing solid waste collection and disposal services at Fort Polk. The use of other than sealed bidding procedures is unnecessarily burdensome. Will adversely affect competition. The Army explains that significant changes to its requirements are now reflected in its solicitation. The contracting officer states that the solicitation includes a waste reduction requirement whose method of implementation is left to the discretion of the contractor. View Decision Matter of: Enviroclean Systems, Inc. File: B-278261 Date: December 24, 1997 DIGEST Attorneys DECISION Enviroclean Systems, Inc. protests the use of negotiated procedures by the Department of the Army to procure solid waste management services for Fort Polk, Louisiana, pursuant to request for proposals (RFP) No. DAKF24-97-R- 0013. Enviroclean argues that the Army is required to use sealed bidding procedures for this procurement. [1] We deny the protest. Enviroclean is the current incumbent contractor providing solid waste collection and disposal services at Fort Polk. The company received its contract after submitting the low bid on the earlier procurement. On May 30, 1997, the Army issued a follow-on solicitation for these services, using two-step sealed bidding. After Enviroclean challenged the use of other than an IFB, the Army canceled the solicitation on June 17, 1997. Approximately 3 months later, on September 15, the Army issued the above- referenced RFP for these services. According to Enviroclean, the use of other than sealed bidding procedures is unnecessarily burdensome, will adversely affect competition, and may be a punitive attempt by the Army to avoid award to Enviroclean because of a performance dispute that arose between it and the Army during the previous contract. The Army responds that this procurement meets the requirements in statute and regulation for using negotiated procedures rather than soliciting sealed bids. First, the Army explains that significant changes to its requirements are now reflected in its solicitation, and that these changes may require it to hold discussions with potential offerors. For example, the contracting officer states that the solicitation includes a waste reduction requirement whose method of implementation is left to the discretion of the contractor. Contracting Officer's Statement, Nov. 5, 1997, at second unnumbered page. In addition, the Army has elected to make quality more important than price in its evaluation of proposals, and has identified numerous quality evaluation subfactors in the solicitation. RFP sec. M.001. Finally, the Army denies that it is changing its method of solicitation in order to avoid selecting the protester. The Competition in Contracting Act (CICA) directs agencies to use the competitive procedure that is best suited to the circumstances of the procurement. 10 U.S.C. sec. 2304(a)(1)(B) (1994). CICA does, however, require the use of sealed bidding when: (1) time permits; (2) award will be based on price; (3) discussions are not necessary; and (4) more than one bid is expected. 10 U.S.C. sec. 2304(a)(2)(A); Federal Acquisition Regulation (FAR) sec. 6.401(a); Specialized Contract Servs., Inc., B-257321, Sept. 2, 1994, 94-2 CPD para. 90 at 4. When an agency determines that these conditions are not met, CICA requires the use of negotiated procedures. 10 U.S.C. sec. 2304(a)(2)(B). An agency's determination that the conditions requiring use of sealed bidding are not present must be reasonable. F&H Mfg. Corp., B-244997, Dec. 6, 1991, 91-2 CPD para. 520 at 4. With respect to the Army's decision that discussions with offerors may be necessary before it awards a contract for these services, the Army explains that, despite the protester's assertions to the contrary, the specifications for this procurement are not adequate to ensure that offerors will create successful waste disposal and recycling programs to meet the government's needs. In addition, it explains that there were several problems with contract interpretation during the previous contract, including disagreements over how the government's recycling program should be implemented.